Australian Politics and Policy - Senior, 2019a

Courts
It was clear that the High Court of Australia was generally to operate in the
same manner as the English common law courts. However, there was one
significant difference. Because England did not have a written constitution, the
English courts accepted that they did not have a constitutional role, in the sense
that they did not rule on the constitutional validity of legislation. In contrast,
borrowing from the USA, which did have a written constitution, it was assumed
that the Australian High Court would declare Australian legislation (whether state
or Commonwealth) invalid if it exceeded the constitutional power of the enacting
parliament or infringed an express or implied limit in the Constitution. 14
The Constitution also provided in section 71 that the Commonwealth parliament
could create other federal courts. Although a Federal Court of Bankruptcy
was created in 1930 and an Industrial Court in 1957, it was not until the 1970s that
a generalised system of federal courts was established. This began with the creation
of the Family Court of Australia in 1975 and the Federal Court of Australia in
1976. As a result of the increasing workload in both the Family and Federal Courts,
in 1999 the Federal Magistrates Court, now called the Federal Circuit Court, was
established.
Court hierarchy
The Australian court system has many different courts with different responsibilities.
Each court is regulated by an Act of parliament. The federal courts,
including the High Court, are regulated by an Act of the Commonwealth parliament.
The state courts are regulated by their respective state parliaments. The
Australian Capital Territory and Northern Territory courts are also regulated by
their respective parliaments, although they owe their ultimate existence to Commonwealth
legislation. 15
Despite the number and different types of courts, there is a reasonably clear
hierarchy, with the High Court at the apex of what can be described as a unified
system. 16 It is a hierarchy in the sense that courts are ranked from highest to
lowest. Figure 1 provides a general overview of this hierarchy. The hierarchy in turn
facilitates the operation of three important characteristics of the modern common
law system:
• the balancing of specialist knowledge with more general legal knowledge
14 This principle is derived from the US decision of Marbury v Maddison (1803) 1 Cranch 137 and,
subject to some modifications, is accepted as ‘axiomatic’ in Australia: see The Australian
CommunistPartyvTheCommonwealth(1951) 83 CLR 1, 262 (Fullagar J).
15 Section 122 of the Constitution enables the Commonwealth parliament to pass laws allowing
for self-government of the territories.
16 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 138 (Gummow J).
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